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Tuesday, September 4, 2012

Free Speech, Media Trial, Contempt of Court and Defences under the Law

In a comment on an earlier post, one of the blog’s regular readers and
well-wishers, Ashwani Balayan, sought clarity on the balance to be struck between use of
information related to a judicial proceeding and free speech/academic review. This post is intended to address the query.

The first question that needs to be addressed
on the issue is
the source of the information related to the judicial proceeding. Each High
Court lays down its own rules with respect to access of its records.

As
mentioned in my comment in a previous
post, Chapter 5 of the
Delhi High Court Rules governs access to the Court’s records and is titled
"Records—Their Inspection, Grant of
Copies and Destruction". Rule 2 of the said Rules reads as follows:

"2. Inspection of
pending cases by parties or agents—Records of pending cases will be open, as of
right, to the inspection of parties or their authorised agents or any Advocate
of the Court, who is duly authorised to act in the case or junior counsel whether
he be an advocate of a pleader of such duly authorized advocate provided the
latter certifies on the application that he has authorized his junior to
inspect the record for him.

Provided that an Advocate of the Court
may inspect the record of any such case on giving an assurance that he is in
communication with one of the parties with a view to being retained in it:

Provided also that the inspection of a
record will not be permitted on the date fixed for hearing without the special
order of the Judge or one of the Judges before whom the case is pending."

This Rule makes it clear that no Advocate or third
party who has no connection to a matter may inspect the records a pending suit.
However, can copies relating to the suit be granted to a stranger? Following
are the relevant rules:

"(ii) Grants of certain copies to
strangers—A stranger to the suit or appeal may, after decree, obtain as of
right, on payment copies of the plaint, memorandum of appeal, written
statements, affidavits and petitions filed in the suit or appeal; and may, for
sufficient reason shown to the satisfaction of the Court, obtain copies of any
such documents before decree.

(iii) Grant of certain copies to
stranger—A stranger to the suit or appeal may also obtain as of right, on
payment copies of judgments, decrees or orders, at any time after they have
been passed or made.

(iv) Grant of copies of exhibits to
strangers—A stranger to the suit or appeal has no right to obtain copies of
exhibits put in evidence, except with the consent of the person by whom they
were produced or under the orders of the Court."

These Rules clarify that a stranger to a suit has no
right to obtain copies of records as long as the matter is pending, unless he
has sufficient reasons and has taken the permission of the Court. Even the High
Court's RTI rules do not deal with supply of case
documents. They only relate to supply of information pertaining to the functioning of the
High Court.

Further,
under the Delhi High Court Rules, I am not sure if parties to a
proceeding may share pleadings
with third parties with a view to have them published. The Rules seem to
envisage only sharing
of exhibits led in evidence with the consent of a party; however, a similar
exception is absent with respect to pleadings. In fact, a stranger needs to
show sufficient reasons to the Court to be given copies of the records before a
decree is passed.

As for use of the Court's record, it would require interpretation of Sections 3, 4, 5, 12 and 13 of the Contempt of Courts Act,
1971 (“CCA”) to address the question of whether or not a particular use of the
information in the Court’s record amounts to contempt and if an alleged contemnor has valid
reasons to raise defences under Section 13 of the Act.

Section 3 of the CCA exempts innocent publication and
distribution from contempt i.e. at the time of publication and distribution of
any matter which interferes with or obstructs administration of justice, the
person who publishes and distributes the matter must have no reasonable grounds
to believe that there exists a pending legal proceeding which relates to the published matter.

Stated otherwise, if a person publishes and distributes
information related to a pending legal proceeding with the complete knowledge
of the pendency of the proceeding, such person is not entitled to an
exemption from contempt under Section 3.

However, the person may still fall back on Section 4 of the
CCA which deals with fair and accurate report of judicial proceeding to escape
contempt. Courts have held that fair and accurate reporting of a judicial
proceeding naturally excludes from its ambit portrayal of a one-sided picture
of the proceeding (Subhash Chand v. S.M.Aggarwal 1984 CrLJ 481). More importantly, the act must amount to “reporting”, and
not an editorial or a comment on the merits of the pending proceeding.

If however the act does not limit itself to mere reporting
and amounts to volunteering with a comment on merits, the defenses that may
still be available are under Section 13 of the CCA, wherein it must be
established that:

A. the comment does not substantially interfere with the due
course of justice; OR

B. the comment amounts to justification by truth, which has
been made with a view to protect public interest. This defence of justification
must be a bonafide one.

From the above, it bears out that not every form of free
speech is a defense against or exemption from contempt. The defense is limited to justification
by truth even if the comment interferes with the due course of justice.